Judith Wanjiru Thwagi & 2 others v David Nyoike Waweru and 19 others [2018] KEELC 948 (KLR)
The bottom line
#A Kenyan court ruled that a land tribunal acting beyond its powers has no legal force, so the landowners' 2017 claim can proceed to full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata in light of the North Kinangop Land Disputes Tribunal proceedings adopted in Nyahururu PMCC Land Dispute No. 31 of 2006
Res judicata fails because the tribunal acted in excess of its jurisdiction and its award was never adopted as a judgment, having abated upon the objector's death
Section 7 of the Civil Procedure Act requires a former suit between the same parties over the same subject matter, heard and finally decided by a competent court. Section 3(1) of the Land Disputes Tribunals Act limited tribunals to boundaries, occupation or trespass, not title. The tribunal apportioned land and lifted a caution, powers reserved to the High Court. Its award was declared abated on 9th November 2010 and never adopted, hence it is a nullity incapable of supporting res judicata.
Whether the suit is time barred under the Limitation of Actions Act
The suit is not time barred as the cause of action accrued in November 2006 upon the death of the Plaintiffs' father, less than twelve years before the suit was filed on 17th July 2017
Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from accrual of the right. The Plaintiffs' father died in November 2006, after which the Defendants began erecting permanent houses on the suit land. The suit filed on 17th July 2017 was therefore within the twelve-year period.
The scope of a Preliminary Objection and its precedence in hearing
A Preliminary Objection consists of a point of law pleaded or arising by clear implication out of the pleadings which, if argued as a preliminary point, may dispose of the suit
The court adopted the classic definition from Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited, holding that an objection seeking dismissal of the suit takes precedence over other directions and may be disposed of first by written submissions.
Legal principles established
#- A decision of a tribunal acting without jurisdiction is a nullity and cannot found a plea of res judicata
- An action to recover land must be brought within twelve years from when the right of action accrued
Court orders
#- 1.The Defendants' written submissions filed on 26th July 2018 out of time are expunged from the record
- 2.The Preliminary Objection dated 24th April 2018 is dismissed with costs to the Plaintiff
- 3.The suit to proceed to full hearing on the merits
- Jurisdiction invoked
- Article 159 of the Constitution and Section 3A of the Civil Procedure Act invoked by the Plaintiff; Environment and Land Court original jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Karunga Women Company Limited v Stephenson Kingara Ng’ang’a & another [2019] KEELC 2404 (KLR)[2019] KEELC 2404 (KLR)4 Jul 2019applied
Cite this brief
#Cite this brief
Caselaw, "Judith Wanjiru Thwagi & 2 others v David Nyoike Waweru and 19 others [2018] KEELC 948 (KLR)", Case Analysis (2018). Nyandarua ELC (Nyahururu) suit re land parcel Nyandarua/Nandarasi/2724. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/948/eng@2018-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.